Weathers v. State

• Decision Date: 09 August 1995
• Docket Number: No. 24271,24271
• Citation: 459 S.E.2d 838,319 S.C. 59
• Court: South Carolina Supreme Court
• Parties: Joe Henry WEATHERS, Petitioner, v. STATE of South Carolina, Respondent.

Page 838

459 S.E.2d 838

319 S.C. 59

Joe Henry WEATHERS, Petitioner, v. STATE of South Carolina, Respondent.

No. 24271.

Supreme Court of South Carolina.

Submitted May 16, 1995.

Decided July 3, 1995.

Rehearing Denied Aug. 9, 1995.

Deputy Chief Atty. Joseph L. Savitz, III, S.C. Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Deputy Atty. Gen. J. Emory Smith, Jr., and Asst. Attys. Gen. Teresa Nesbitt Cosby and Teresa A. Knox, Columbia, for respondent.

PER CURIAM:

Petitioner pled guilty to obtaining a controlled substance by forgery, conspiracy to obtain a controlled substance by forgery, attempt to obtain a controlled substance by fraud and obtaining a controlled substance by fraud. No direct appeal was taken. After a hearing, the post-conviction relief (PCR) judge granted petitioner a review of any direct appeal issues, ordered a new trial on the charge of obtaining a controlled substance by fraud, and denied the remaining allegations of the PCR application. We grant the petition for a writ of certiorari, affirm the order of the PCR judge, and affirm petitioner's convictions.

According to petitioner's PCR testimony, counsel never informed him of his right to a direct appeal. However, he testified that he asked counsel to file an appeal for him several days after he began his incarceration. Counsel testified at the PCR hearing that she did not inform petitioner of his right to appeal from the guilty plea and that petitioner never asked her to appeal the matter. The PCR judge, after holding that there is no requirement that a defendant be informed of the right to a direct appeal absent extraordinary circumstances, went on to find that, in this case, petitioner did not knowingly and intelligently waive his right to a direct appeal. Although it is not clear from the order, the PCR judge apparently found petitioner's testimony that he had inquired about an appeal to be credible and, therefore, found an extraordinary circumstance which would require counsel to inform petitioner of his appellate rights.

This Court has never addressed the issue of whether a defendant must be advised of the right to appeal following a guilty plea. We now adopt the holding of the majority of courts that, absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea. See Laycock v. New Mexico, 880 F.2d 1184 (10th Cir.1989); Marrow v. United States, 772 F.2d 525 (9th Cir.1985); Davis v. Wainwright, 462 F.2d 1354 (5th Cir.1972); Carey v. Leverette, 605 F.2d 745 (4th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979); Farrington v. North Carolina, 391 F.Supp. 714 (M.D.N.C.1975); Younger v. Cox, 323 F.Supp. 412 (W.D.Va.1971). The bare assertion that a defendant was not advised of appellate rights is insufficient to grant relief. Instead, there must be proof that extraordinary circumstances exist such that the defendant should have been advised of the right to appeal. Younger v. Cox, supra. One extraordinary circumstances which would require counsel to advise a defendant of the right to appeal from a guilty plea would arise when the defendant inquires about an appeal. Laycock v. New Mexico, supra; Marrow v. United States, supra.

We have reviewed the record of the PCR hearing and find evidence to support the PCR judge's finding that petitioner requested an appeal, but was not advised of his appellate rights. McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (Sup.Ct.1995) (Davis Adv. Sh. No. 5 at 10) (...